Human Resources professionals and D&I experts often face discrimination issues in the workplace.  One of the latest challenges has been the display of symbols such as the Confederate flag in the workplace.  Educating managers and field supervisors on the importance of addressing and reporting issues on displaying of symbols in the workplace, has become a very challenging subject for many private companies. The question that rises is: Can an employer legally discharge an employee for displaying the Confederate flag or other controversial symbols in the workplace? 

Before answering that question, let’s think about why the flag is considered racist.  Let’s take a look at some historical events that make the Confederate flag a racist symbol.  According to the Southern Poverty Law Center, the Confederate flag is the most controversial symbol in the history of United States.  The cultural implication of such symbol varies from North to South and it dates back to the Civil War days.  To southerners it is the symbol of regional heritage pride and nationalism as well as the sovereignty of southern states.  To others it has a different connotation; it represents racism, oppression and slavery. It was used as a symbol to maintain racial segregation between blacks and whites, therefore it has a dark, cruel and violent history which provokes controversy.

Over the years, this symbol is associated with white supremacist movements as well as white nationalism.  After the Civil War, the Confederate flag became the sign of rebel pride. In early 20th century it was used by Ku Klux Klan as a symbol of white supremacy against black people. The symbol is often displayed by neo-Nazi supporters alongside with swastikas. 

If the display of a Confederate flag in the workplace could be interpreted by coworkers as offensive, even as a sign of despise or disrespect for a particular race or ethnic group, is it still a right of expression supported by First Amendment?  The fact that the flag or similar symbols create a hostile work environment creates a particular type of violation of Title VII.  Therefore, it is perfectly legal under federal law for a private company to discharge an employee for his expressive speech or conduct that involves the Confederate flag.  An employer would want to forbid the display of the flag or other symbols and can quote compliance with Title VII as their grounds for doing so.  A worker can exercise his/her ‘free speech’ rights within the bounds of the First Amendment in any government institution.  But they cannot exercise the same right with their employer.  These types of displays can be tarnishing the employer’s own reputation and public image. Moreover, taking action against an employee displaying the Confederate flag in the workplace could be characterized as necessary to comply with other anti-discrimination laws.  Managers and field supervisors should treat the incidents the same way they would treat any workplace harassment or discrimination issues. 

Here are some tips on how to educate managers and field supervisors on the importance of addressing and reporting issues on displaying of symbols in the workplace:

  1. Work with a business attorney with experience on discrimination to assist you design discrimination policies.  Post these policies on the Employee Handbook.
  2. Train all employees with Title VII.
  3. Conduct a Cross-Cultural training for all managers and field supervisors with emphasis on three major components: self-awareness, corporate culture and national culture and how to respect cultural differences in the workplace.  Emphasize the effects of perception, identity, unconscious biases and stereotyping and the negative effects these issues represent in the workplace
  4. Create awareness that removing the symbol is not the same as dealing with the underlying historic complications it signifies – It requires a conscious awareness of its implications.